Prosecutors: Constitution Only Applies to Some Detainees

Judge to Decide Whether Gitmo Really Is a Legal Black Hole

Guantanamo tribunal judge Col. James Pohl is being asked to issue a formal advisory opinion on whether or not the detention center at the US Naval Base really is the legal black hole that critics have often complained it is and that prosecutors, when it suits them, argue that it must be.

The question boils down to prosecutor arguments at a pre-trial hearing today that there should be no presumption that the Constitution necessarily applies to any detainees held at the facility, and that each individual request for Constitutional protection should be ruled on individually.

Defense lawyers have argued that the Constitutional rights should be presumed to apply to all detainees except in cases where the prosecution can prove that it is “impractical” to allow the Constitution to apply. The prosecution’s argument seems to seek to reverse the burden of proof, making defense lawyers prove that their clients have rights instead of having to prove that they don’t.

The question could have far-reaching implications for the ongoing detentions of many at the facility, as the Bush and Obama Administration have often sought to avoid hearings on the legality of open-ended detentions without evidence by arguing that even questioning the detention’s validity is in and of itself not legal.

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Author: Jason Ditz

Jason Ditz is news editor of